Friday, August 28, 2015
No Blog Post Today
When I wrote my post in early May about switching to doing this blog every other Friday, I noted that even then, I expected I will miss some weeks. That time has finally come. I just returned from vacation and have a mountain of work facing me. As a result, I will be taking this week off from posting. You can expect my next post in two weeks. Sorry for the inconvenience!
Friday, August 14, 2015
Virginia Termination of Parental Rights - An Overview
As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link. As always, any legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
One of the unfortunate realities of life is that not every parent is truly fit to be a parent. When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away. In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.
While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.
What Happens When Your Parental Rights are Terminated?
So, before beginning, it's important to know what it means for your "parental rights" to be terminated. This doesn't just mean you don't get to see the child anymore. Remember how, for example, custody and visitation is modifiable? Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again. You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc. Basically, as far as the law is concerned, you are no longer that child's parent.
Now, along with your rights being terminated, your responsibilities are as well. The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well. I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.
So, in short, a termination of parental rights means the law no longer considers you that child's parent. You have no rights related to that child or responsibilities. One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.
Voluntary Termination of Parental Rights
So, as noted above, I've seen people "sign away their rights" just to get out of child support. How does that happen? Well, there are two ways. I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody." In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire. Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child. The local Department of Social Services is required to investigate the matter.
Involuntary Termination of Parental Rights
An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home. This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent. While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption. Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.
There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.
Adoption
Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents. There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court. For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.
In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency. In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.
There's an important note about adoptions, however. Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents. Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them). There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them. This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.
Conclusion
Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia. The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney. If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our consults are free for up to half an hour!
Introduction
One of the unfortunate realities of life is that not every parent is truly fit to be a parent. When a parent is unfit, sometimes it is necessary for their rights as a parent to be taken away. In Virginia, there are three basic ways (although each of these categories has a wide range of sub-categories) a parent's rights can be terminated - through a voluntary termination proceeding, through an involuntary termination proceeding, or through an adoption.
While each of these categories probably deserve blog posts of their own (in fact, a number of their sub-categories deserve blog posts of their own) which I hope to write in the future, today I'm just going to provide a basic overview of the three procedures - what they mean, how they get started, and what their implications are.
What Happens When Your Parental Rights are Terminated?
So, before beginning, it's important to know what it means for your "parental rights" to be terminated. This doesn't just mean you don't get to see the child anymore. Remember how, for example, custody and visitation is modifiable? Well, if your parental rights are terminated, that's permanent (with a couple very rare exceptions I won't get into here), so you can never seek an order allowing you to see your child again. You also lose any inheritance rights you may have had involving the child, any rights to have any say in how the child is raised, etc. Basically, as far as the law is concerned, you are no longer that child's parent.
Now, along with your rights being terminated, your responsibilities are as well. The care of the child is no longer your responsibility, and if you were not the custodial parent, your child support obligation ends as well. I'm sorry to say I've encountered far too many cases with someone will to just sign away their parental rights and any hope of a relationship with their own child just so that they won't have to pay child support.
So, in short, a termination of parental rights means the law no longer considers you that child's parent. You have no rights related to that child or responsibilities. One caveat - if you committed a parental crime before your rights were terminated (abuse or neglect being the main ones) you can still be charged and convicted since this was before your responsibilities had been terminated.
Voluntary Termination of Parental Rights
So, as noted above, I've seen people "sign away their rights" just to get out of child support. How does that happen? Well, there are two ways. I'll get to the most common way at the end of this section, but a less common but potentially robust way comes from the Virginia Code. Virginia Code Section 16.1-277.02 creates a cause of action called a "Petition for Relief of Care and Custody." In this instance, the parent wishing to give up his or her parental rights must file a petition with the J&DR Court stating that the petitioner wishes to give up his or her parental rights and laying out the reasons for that desire. Notice must be given to the child (if the child is 12 years old or older), a guardian ad litem appointed for the child, the local Department of Social Services, and all other parents or guardians of the child. The local Department of Social Services is required to investigate the matter.
At the hearing on the matter, the petitioner, the child (through his or her guardian ad litem), the other parents and guardians and the Department of Social Services all have the right to put on evidence. After hearing all of the evidence, the court must determine whether it has been proven by "clear and convincing evidence" (so, more than a preponderance of evidence, but not as strict as beyond a reasonable doubt) that termination of the parental rights is in the child's best interest. In other words, "I don't want to pay child support" isn't a good enough legal reason to terminate your parental rights, even if that is your motivation. It is also very likely that at least one of the above parties will oppose your efforts (for example, the other parent may not be ok with you never paying child support again).
It is worth noting that many courts have read this code section to require the petitioning parent to actually have custody of the child, and thus dismisses petitions filed by a non-custodial parent. This is not settled law yet. As a result, most "voluntary" terminations of parental rights actually occur in cases where an involuntary termination petition is filed, but the parent consents to the termination.
Involuntary Termination of Parental Rights
An involuntary termination of parental rights can occur when the local Department of Social Services concludes your child is in need of their services and should be removed from your home. This is primarily due to abuse and neglect issues, but can also arise from other matters showing that you are an unfit parent. While it is possible in certain circumstances for only one parent's rights to be terminated this way, usually both parents' rights are, and the child is placed in foster care with a goal of adoption. Moreover, it is important to note that one parent cannot petition to terminate the rights of the other parent.
There are many ways and reasons the parental rights are involuntarily terminated, so I will not get into those matters too far here, but a very large percentage of parental right terminations occur in the involuntary termination process.
Adoption
Adoption, both contested and uncontested, also results in the termination of parental rights of biological parents. There are many kinds of adoptions, so I won't go into all of them here, but in most forms of adoption, legal custody has to be granted to the adoptive parents in the J&DR Court before they can begin the adoption process in the Circuit Court. For basically all adoptions except agency adoptions and step-parent adoptions, the termination of the biological parents' parental rights occurs in the J&DR Court as part of the same Order that grants the adoptive parents custody of the child.
In agency adoptions, the biological parents' parental rights are terminated when the child is placed in the custody of the agency. In step-parent adoptions, the parental rights of the biological parent that the step-parent is "replacing" are terminated as part of the Final Order of Adoption in the Circuit Court.
There's an important note about adoptions, however. Unlike other forms of termination of parental rights, adoptions affect more people than just the biological parents. Specifically, all people (including grandparents, uncles, aunts, nieces, nephews, etc.) that had a biological relationship with the child through a person whose parental rights have been terminated as part of an adoption also lose their residual rights with regard to that child (we just had a recent case in the Court of Appeals here affirming that the biological grandparents of two children automatically lost their previously ordered visitation rights with their biological grandparents when the children's foster parents adopted them). There is an exception, however - in step-parent adoptions it is only the parent who loses his or her rights, all of that parent's relatives still retain them. This exception, however, only applies in the case of a step-parent adoption, not any other form of adoption.
Conclusion
Termination of parental rights is one of the most complicated and emotional situations we face in family law in Virginia. The procedures can be daunting to someone unfamiliar with the system, and this is a situation where you should virtually always have an attorney. If you are involved in parental termination proceedings (voluntary or involuntary) or an adoption and you would like to consult with a lawyer, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com. Our consults are free for up to half an hour!
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